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Vioxx Retrial set for February in New Orleans

Round Two of the nation’s first federal trial challenging safety of Merck & Co.’s drug Vioxx will be Feb. 6 in New Orleans, a judge told attorneys today.

U.S. District Judge Eldon Fallon of New Orleans held a private telephone conference with attorneys on both sides Friday to set the date and place to retry the case that ended Monday with a hung jury.

The trial, which began Nov. 29 and went into the jury’s hands after closing arguments Dec. 8, took place in Houston because of Hurricane Katrina’s wrath on its original venue of New Orleans.

Jere Beasley, one of the lead plaintiff’s attorneys, and Kent Jarrell, spokesman for Merck’s legal team, said Fallon set the date in the case’s original venue.

Fallon declared a mistrial 20 minutes into the jury’s fourth day of deliberations Monday because the panel hadn’t reached a unanimous verdict as required in federal litigation after 18 hours of deliberations.

Two jurors told The Associated Press that one of the nine-member panel refused to absolve Merck of liability, leaving them split 8-1 in favor of the company.

The result leaves Merck with a win and a loss in two state trials and an undecided in its first federal trial.

The company withdrew Vioxx from the market in September last year when a study showed it could double risk of heart attack or stroke if taken for 18 months or longer. About 20 million people took the once-popular painkiller, and the company faces billions in potential payouts stemming from about 7,000 pending state and federal lawsuits.

The federal trial centered on the 2001 death of Richard “Dicky” Irvin, a Florida wholesale seafood company manager who took Vioxx for about a month.

Merck blamed Irvin’s clogged arteries for his death, and said Vioxx couldn’t be responsible because he took the drug for such a short time. Irvin’s widow, Evelyn Irvin Plunkett, countered that Vioxx caused a blood clot in one of Irvin’s arteries, which led to his fatal heart attack.

One of the jurors, Amanda Toungate, said she didn’t believe the drug caused Irvin’s death, though she thought Merck should have done a better job telling patients about Vioxx’s risks. “He had too many other risk factors,” she said.

Before noon Saturday, jurors told Fallon they were deadlocked. The judge encouraged them to continue deliberating for a “reasonable time,” and they complied. But by Monday, the judge had decided 18 hours was enough, and declared a mistrial, attorneys said afterward.

“He told us in chambers that he had decided they had deliberated long enough,” said Phil Beck, Merck’s lead lawyer in the case.

On Dec. 9, the jury’s second day of deliberations, Plunkett’s attorneys asked Fallon in a closed-door meeting for a mistrial based “in large measure” on revelations the day before from the New England Journal of Medicine, said Leigh O’Dell, one of those attorneys. The journal accused the company of withholding damaging information about a 2000 Vioxx study from the publication so the drug would appear safer than it was.

The 2000 study, called VIGOR, is not the same study that prompted the drug’s withdrawal. VIGOR showed Vioxx caused five times as many heart attacks as the older painkiller naproxen.

The journal said the information Merck submitted to the publication said Vioxx caused four times as many heart attacks as naproxen.

Merck said more information about heart attacks emerged after the journal article was submitted by the publication deadline, and the higher heart attack risk was disclosed to the Food and Drug Administration.

Beasley declined to explain why his team asked for a mistrial based on the journal revelations before the jury said it was deadlocked or before the trial’s outcome was known. Fallon never ruled on their unwritten mistrial request.

Beck said the deadlock prompted the judge to declare a mistrial.

“He declared a mistrial not on the grounds of the New England Journal of Medicine but on grounds that the jury had told him they were deadlocked,” Beck said.

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